STATE OF NEW YORK
________________________________________________________________________
3680
2013-2014 Regular Sessions
IN SENATE
February 11, 2013
___________
Introduced by Sen. SAVINO -- read twice and ordered printed, and when
printed to be committed to the Committee on Labor
AN ACT to amend the workers' compensation law, in relation to setting a
time limit for requesting full board review of unanimous board panel
decisions
The People of the State of New York, represented in Senate and Assem-bly, do enact as follows:
1 Section 1. Section 23 of the workers' compensation law, as amended by
2 chapter 6 of the laws of 2007, is amended to read as follows:
3 § 23. Appeals. An award or decision of the board shall be final and
4 conclusive upon all questions within its jurisdiction, as against the
5 state fund or between the parties, unless reversed or modified on appeal
6 therefrom as hereinafter provided. Any party may within thirty days
7 after notice of the filing of an award or decision of a referee, file
8 with the board an application in writing for a modification or rescis-
9 sion or review of such award or decision, as provided in this chapter.
10 The board shall render its decision upon such application in writing and
11 shall include in such decision a statement of the facts which formed the
12 basis of its action on the issues raised before it on such application.
13 Within thirty days after notice of the decision of the board upon such
14 application has been served upon the parties, or within thirty days
15 after notice of an administrative redetermination review decision by the
16 chair pursuant to subdivision five of section fifty-two, section one
17 hundred thirty-one or section one hundred forty-one-a of this chapter
18 has been served upon any party in interest, an appeal may be taken ther-
19 efrom to the appellate division of the supreme court, third department,
20 by any party in interest, including an employer insured in the state
21 fund; provided, however, that [if the decision or determination was that
22 of a panel of the board and there was a dissent from such decision or
23 determination other than a dissent the sole basis of which is to refer
24 the case to an impartial specialist,] any party in interest may within
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[] is old law to be omitted.
LBD03132-01-3
S. 3680 2
1 thirty days after notice of the filing of the board panel's decision
2 with the secretary of the board, make application in writing for review
3 thereof by the full board, [and] raising arguments relative to the
4 alleged deficiencies of the board panel decision. If the decision or
5 determination was that of a panel of the board and there was a dissent
6 from such decision or determination other than a dissent the sole basis
7 of which is to refer the case to an impartial specialist, the full board
8 shall review and affirm, modify or rescind such decision or determi-
9 nation in the same manner as herein above provided for an award or deci-
10 sion of a referee. If the decision or determination was that of a unan-
11 imous panel of the board, or there was a dissent from such decision or
12 determination the sole basis of which is to refer the case to an impar-
13 tial specialist, the full board may in its sole discretion review and
14 affirm, modify or rescind such decision or determination in the same
15 manner as herein above provided for an award or decision of a referee.
16 Failure to apply for review by the full board shall not bar any party in
17 interest from taking an appeal directly to the court as above provided.
18 The board may also, in its discretion certify to such appellate division
19 of the supreme court, questions of law involved in its decision. Such
20 appeals and the question so certified shall be heard in a summary manner
21 and shall have precedence over all other civil cases in such court. The
22 board shall be deemed a party to every such appeal from its decision
23 upon such application, and the chair shall be deemed a party to every
24 such appeal from an administrative redetermination review decision
25 pursuant to subdivision five of section fifty-two of this chapter. The
26 attorney general shall represent the board and the chair thereon. An
27 appeal may also be taken to the court of appeals in the same manner and
28 subject to the same limitations not inconsistent herewith as is now
29 provided in the civil practice law and rules. It shall not be necessary
30 to file exceptions to the rulings of the board. An appeal to the appel-
31 late division of the supreme court, third department, or to the court of
32 appeals, shall not operate as a stay of the payment of compensation
33 required by the terms of the award or of the payment of the cost of such
34 medical, dental, surgical, optometric or other attendance, treatment,
35 devices, apparatus or other necessary items the employer is required to
36 provide pursuant to section thirteen of this article which are found to
37 be fair and reasonable. Where such award is modified or rescinded upon
38 appeal, the appellant shall be entitled to reimbursement in a sum equal
39 to the compensation in dispute paid to the respondent in addition to a
40 sum equal to the cost of such medical, dental, surgical, optometric or
41 other attendance, treatment, devices, apparatus or other necessary items
42 the employer is required to provide pursuant to section thirteen of this
43 article paid by the appellant pending adjudication of the appeal. Such
44 reimbursement shall be paid from administration expenses as provided in
45 section one hundred fifty-one of this chapter upon audit and warrant of
46 the comptroller upon vouchers approved by the chair. Where such award is
47 subject to the provisions of section twenty-seven of this article, the
48 appellant shall pay directly to the claimant all compensation as it
49 becomes due during the pendency of the appeal, and upon affirmance shall
50 be entitled to credit for such payments. Neither the chair, the board,
51 the commissioners of the state insurance fund nor the claimant shall be
52 required to file a bond upon an appeal to the court of appeals. Upon
53 final determination of such an appeal, the board or chair, as the case
54 may be, shall enter an order in accordance therewith. Whenever a notice
55 of appeal is served or an application made to the board by the employer
56 or insurance carrier for a modification or rescission or review of an
S. 3680 3
1 award or decision, and the board shall find that such notice of appeal
2 was served or such application was made for the purpose of delay or upon
3 frivolous grounds, the board shall impose a penalty in the amount of
4 five hundred dollars upon the employer or insurance carrier, which
5 penalty shall be added to the compensation and paid to the claimant. The
6 penalties provided herein shall be collected in like manner as compen-
7 sation. A party against whom an award of compensation shall be made may
8 appeal from a part of such award. In such a case the payment of such
9 part of the award as is not appealed from shall not prejudice any rights
10 of such party on appeal, nor be taken as an admission against such
11 party. Any appeal by an employer from an administrative redetermination
12 review decision pursuant to subdivision five of section fifty-two of
13 this chapter shall in no way serve to relieve the employer from the
14 obligation to timely pay compensation and benefits otherwise payable in
15 accordance with the provisions of this chapter.
16 Nothing [herein] contained in this section shall be construed to
17 inhibit the continuing jurisdiction of the board as provided in section
18 one hundred twenty-three of this chapter.
19 § 2. The opening paragraph of subdivision 2 of section 142 of the
20 workers' compensation law, as amended by chapter 608 of the laws of
21 1989, is amended to read as follows:
22 2. Any review, hearing, rehearing, inquiry or investigation required
23 or authorized to be conducted or made by the workers' compensation board
24 may be conducted or made by any panel of the board consisting of not
25 less than three members thereof, and the order, decision or determi-
26 nation of a majority of the members of a panel shall be deemed the
27 order, decision or determination of the board from the date of filing
28 thereof with the secretary of the board, unless the board on its own
29 motion, or on application by a party in interest for a full board review
30 made in accordance with section twenty-three of this chapter, shall
31 modify or rescind such order, decision or determination. Four panels
32 shall be constituted at all times, and the chair shall assign the
33 members to the panels upon which they shall serve. At least one member
34 on each panel shall be an attorney and counsellor-at-law, but the
35 absence of an attorney on any panel shall not invalidate the order,
36 decision or determination of a majority of the members of the panel if
37 at least two affirmative votes are cast in favor of such action. The
38 panels shall be constituted so that the members of the board shall
39 alternate in their periods of service together thereon. Whenever a
40 number of proceedings remains pending before the board for a period in
41 excess of thirty days, members of the board shall hold hearings and
42 otherwise act in the discharge of their duties evenings and at other
43 convenient times on all days of the week except Sundays, in addition to
44 the times when they would perform such duties in the ordinary conduct of
45 the business of the board, in order to expedite the disposal thereof.
46 The chair may and shall, when directed by the governor, prescribe the
47 hours and the times for such additional performance of duty by the
48 members of the board and the period or periods for the continuance ther-
49 eof.
50 § 3. This act shall take effect immediately and shall apply to all
51 requests for review by the full board from decisions of a panel of a
52 board issued after the ninetieth day after it shall have become a law.
